Court of Appeals Digest

Court of Appeals Digest

This column summarizes selected published opinions of the
Wisconsin Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J.
Hammer invite comments and questions about the digests. They can be
reached at the Marquette University Law School, 1103 W. Wisconsin Ave.,
Milwaukee, WI 53233, (414) 288-7090.

Criminal Procedure -
Trial Procedure

The defendant was convicted on various drug charges. On appeal he
argued that the police search of his trash, which had been bagged in a
black plastic garbage bag and placed in a trash receptacle located
outside of his apartment building, violated his Fourth Amendment rights,
because he had a reasonable expectation of privacy in his trash. [The
receptacle was 53 feet from the apartment building and 170 feet from the
public street.] The defendant also contended that the trial court erred
in denying his motion for a mistrial when a key state witness violated
an in limine ruling by implying to the jury that the defendant had a
prior criminal record.

In a decision authored by Judge Anderson, the court of appeals
affirmed. With regard to the warrantless search of the defendant's
garbage, the court concluded that the issue should be analyzed under a
two-part test: 1) whether the individual by his or her conduct has
exhibited an actual, subjective expectation of privacy, and 2) whether
that expectation is justifiable in that it is one which society will
recognize as reasonable. [The court indicated that any argument
regarding whether the garbage was within the curtilage would be properly
analyzed as falling within the expectation-of-privacy analysis and not
as a separate factor.]

With regard to the subjective prong of the two-part test described
above, the court concluded that the defendant did not have an actual
subjective expectation of privacy in his trash. "We reach this
conclusion based on the following evidence. The garbage was placed in a
dumpster located at the far rear of the apartment building property. The
garbage was placed in the dumpster with the knowledge of and expectation
that it would be picked up for disposal by the garbage collection
service. While the property was surrounded on three sides by a fence,
the fence did not impede access to the property or to the dumpster.
Although the property had a 'Private Property' sign and signs warning
that there should be no playing around the dumpster, the signs did not
bar observation of the dumpster from the street or impede access to the
dumpster. The dumpster was located in an area totally unassociated with
activities that would normally be associated with notions of
privacy"(¶ 21).

On the objective component of the two-part test, the court concluded
that society would not recognize a reasonable expectation of privacy
when garbage is thrown into a trash receptacle with the knowledge and
the expectation that control of the garbage would be turned over to
third parties. "Society would expect that while the most immediate
third-party recipient of garbage in a dumpster would be a garbage
collector, that is not the only third party one can envision taking
control of this garbage. It would not be unreasonable under these facts
for society to expect access to the garbage by other third parties
(i.e., scavengers and the like) when such garbage is easily accessible
to the public. As noted, this garbage was abandoned in a dumpster that
was both visible from the street and had unimpeded access from the
street" (¶ 22) (citations omitted). Accordingly, the court held
that the defendant's Fourth Amendment protection claim failed.

With regard to the testimony in violation of the in limine order, the
court concluded that, under the entirety of the evidence, the testimony
was not so prejudicial as to affect the verdict, given that the court
struck the testimony at the time and, at the end of the trial, gave the
standard jury instruction telling the jury to ignore all things
stricken. Nonetheless, the court expressed serious concerns about what
it perceived as an increasing pattern of witness and/or attorney
violations of in limine orders. Accordingly, it offered the following
suggestions to trial courts to prevent such violations:

"(1) Prior to trial, outside the presence of the jury, the court
could address the attorney bound by the motion in limine order and get
that attorney's assurance that each and every witness has been
instructed about the order;

"(2) Prior to a pertinent witness testifying before the jury, the
witness could be put on the stand, outside the presence of the jury,
sworn, and then asked:

"a. if he or she is aware of the motion in limine order,

"b. if he or she understands what evidence is barred and,

"c. if he or she will abide by the court's order;

"(3) Prior to the witness testimony, reduce the motion in limine
order to writing and have a copy served upon each witness" (¶
30).

Jury Waiver - Approval of the Court

The defendant shot a police officer and was convicted by a jury of
attempted first-degree intentional homicide. Before trial the defendant
attempted to waive his right to a jury trial. The state consented to the
waiver, but the trial court refused to approve it. In a decision
authored by Judge Fine, the court of appeals affirmed.

The right of a criminal defendant to a trial by jury is guaranteed by
both the U.S. and Wisconsin Constitutions. The legislature has granted
defendants a limited right to relinquish a trial by jury. Pursuant to
Wis. Stat. section 972.02(1), a jury trial waiver requires the state's
consent and the court's approval. It is established in Wisconsin that a
prosecutor's decision to withhold consent to a defendant's waiver of his
or her right to a jury is not reviewable because, absent extraordinary
circumstances, the courts have no authority to compel that consent.
Moreover, the state is not required to justify its refusal to consent to
a jury waiver.

With regard to the trial court's approval of jury waivers, the
appellate court concluded that the approval function is not a
"quasi-ministerial rubber-stamping" of the parties' request. Rather,
like the prosecution's decision to withhold consent to a defendant's
request to waive jury, the trial court need not explain its decision to
withhold its approval of waiver and, absent extraordinary circumstances
that were not present in this case, the court's decision to withhold
approval is not reviewable. See ¶ 10.

Lastly, the court concluded that there was nothing in the record of
this case that indicates that the trial court's refusal to approve the
defendant's waiver of jury operated to prejudice him. Rather, it
operated to subject the defendant "to an impartial trial by jury - the
very thing that the Constitution guarantees him." Singer v. United
States, 380 U.S. 24, 36 (1965).

Confessions - Voluntariness - Remands - New Trial

Agnello was convicted of first-degree intentional homicide. He
pleaded guilty after the circuit court denied his motion to suppress his
confession. He appealed the conviction judgment and the supreme court
concluded that the prosecutor had improperly questioned Agnello about
the truthfulness of his confession at the suppression hearing. The
supreme court vacated the conviction and remanded the case for a new
suppression hearing. Upon remand, the trial court conducted another
suppression hearing and again found Agnello's confession voluntary. It
reinstated his conviction, and Agnello filed this appeal.

The court of appeals, in an opinion written by Judge Vergeront,
affirmed in part and reversed in part. First, the court held that the
confession was properly found to be voluntary under the totality of the
circumstances. Agnello unsuccessfully argued that the following factors
rendered the confession involuntary: 1) he was handcuffed to a ring in
the interrogation room; 2) he was sleep deprived; 3) police used
psychological coercion involving his foster mother (there was no showing
that he was "unusually vulnerable" to such appeals); and 4) the length
of the interrogation. The court rejected Agnello's contention that he
was improperly subjected to interrogation by "relay teams." The trial
court found that there were breaks during the interrogation session and
that one change in "teams" was caused by a shift change.

Although his confession was voluntary, the court of appeals held that
Agnello nonetheless was entitled to a new trial based on the earlier
remand by the Wisconsin Supreme Court, which stated: "'[W]e reverse the
court of appeals, vacate Agnello's conviction, and remand the cause to
the circuit court for a new Goodchild hearing'" (¶
23).

Examining the supreme court's actions in similarly situated cases,
the court of appeals was satisfied that the supreme court intent was to
grant Agnello a new trial following the suppression hearing on
remand.

Judge Lundsten concurred in the determination that the confession was
voluntary but dissented from the decision permitting Agnello to withdraw
his guilty plea. "It follows that, absent some additional factor or
express remand language to the contrary, when the supreme court or this
court vacates a conviction and remands for a new suppression hearing,
neither court intends that the defendant's plea be vacated if the
original suppression ruling is reached a second time. To repeat, in the
typical case, a circuit court decision on remand affirming an earlier
suppression ruling validates the propriety of the original
conviction" (¶ 38).

Interrogation - Juvenile Confessions - Voluntariness

Jerrell C.J. appealed from an order adjudicating him delinquent for
the commission of armed robbery as party to the crime. He contended that
the trial court erred in denying his motion to suppress a statement he
gave to the police. He argued that the statement was involuntary and
that the police officer should have granted his request to call his
parents.

In a majority decision authored by Judge Wedemeyer, the court of
appeals concluded that the trial judge did not err in denying the motion
to suppress. Applying the usual analysis for evaluating the
voluntariness of a confession, it held that there was no evidence of
police coercion or improper conduct and that the trial court did not
erroneously exercise its discretion in denying the motion to
suppress.

Nonetheless, the majority commented at length to express its grave
concerns about the interrogation of juveniles and to address the
requests of amici curiae for: 1) a per se rule that would exclude
confessions from any child under age 16 who has been denied access to a
parent or guardian, and 2) a mandatory rule requiring police to
videotape all juvenile interrogations.

Although the court found both of these requests compelling, it
believed it was without authority to order either. "We are currently
bound by the dictates of Theriault [v. State, 66 Wis.
2d 33, 223 N.W.2d 850 (1974)], which recognizes 'that special problems
may arise with respect to waiver of the [Miranda] privilege by
or on behalf of children,' but applies the totality of the circumstances
test. Our supreme court rejected a request that a per se rule be applied
when a minor confesses without the presence of a parent or legal
guardian. The court held that the absence of the parent or guardian is
one factor to be considered under the totality of the circumstances
test. Consideration of this factor affords the trial court the
discretion to determine the reason behind denying a juvenile's request
to call his or her parents. 'If the police fail to call the parents for
the purpose of depriving the juvenile of the opportunity to receive
advice and counsel, that would be strong evidence that coercive tactics
were used to elicit the incriminating statements.' Accordingly, we are
bound by that precedent" (¶ 27) (citations omitted).

Despite this precedent, the court noted that Theriault was
decided in 1974 and that the debate concerning the totality of the
circumstances test versus a per se rule has been the focus of much
recent attention. At least 13 states have adopted, by case law or
legislative action, some form of the per se rule. After articulating
reasons for a per se rule (including the problem of false confessions)
and the measures some states have implemented, the majority opined that
"it is time for Wisconsin to tackle the false confession issue. We need
to take appropriate action so that the youth of our state are protected
from confessing to crimes they did not commit. We need to find
safeguards that will balance necessary police interrogation techniques
to ferret out the guilty against the need to offer adequate
constitutional protections to the innocent" (¶ 32).

The defendant was originally charged with four counts of burglary,
one count of felony theft, and one count of misdemeanor theft. Pursuant
to a plea negotiation, he pleaded no contest to the four burglary counts
and to four misdemeanor theft accounts. Under the agreement, his
sentence on the theft counts was withheld and he was placed on probation
for each count with 180 days' jail time as a condition of probation.
Entry of judgment on the burglary counts was deferred for six years,
provided that the defendant committed no additional crimes and abided by
the terms of his probation.

The defendant's probation subsequently was revoked and the state
moved for the entry of the deferred judgments on the burglary counts.
The court granted the motion and imposed lengthy prison terms on each
count. The defendant filed a postconviction motion to withdraw his plea,
claiming that he pleaded no contest pursuant to a deferred prosecution
agreement (DPA) that was defective because it failed to conform to the
statutory requirement that a DPA be in writing. See Wis. Stat.
§ 971.39. The circuit court denied the motion.

In a decision authored by Judge Hoover, the court of appeals
affirmed. The court concluded that, under the facts as described above,
there was no statutory DPA in this case. Rather, the record established
that the defendant entered a plea agreement with the state that
contemplated a deferred entry of judgment on the burglary charges.

Next, the court concluded that, even if there was a DPA in this case,
the defendant's claim that the judgment was void because it was not in
writing was an error he invited. The defense expressly urged the court
to adopt the terms of the plea agreement as described above and the
defendant agreed to the order deferring entry of judgment. The circuit
court followed the parties' joint recommendations and, under such
circumstances, "we do not allow a defendant to cry foul on appeal"
(¶ 13).

Lastly, the court considered the power of a circuit judge to defer
entering a conviction judgment. Although there is no specific statutory
procedure for deferred entries of judgment, "we know of no reason to
prohibit a trial court from doing so if, in the appropriate exercise of
discretion and upon agreement of the parties, a court determines such
deferral is proper" (¶ 16).

Trial - Waiver of Right to Testify - Defense Attempt to Revoke
Waiver After Evidence Is Closed

The defendant was charged with first-degree intentional homicide and
second-degree sexual assault. He entered pleas of not guilty and went to
trial. After the state rested its case-in-chief, the trial court had an
on-the-record colloquy with the defendant to determine if he wanted to
testify. His attorney told the trial court that the defendant did not
want to testify and that this decision was "99 percent definite" pending
the testimony of two defense witnesses. The defendant then assured the
trial court that he understood, and he waived his right to testify.

After the defendant waived his right to testify, the defense called
two witnesses. The defense then rested and the trial court informed the
jury that the evidentiary phase of the trial was complete, and it
dismissed the jury for lunch. After the lunch break, the defendant told
the court that he wanted to rescind his decision not to testify because
he did not understand what rights he was giving up.

The defense attorney informed the court that, before the defense
rested, he asked the defendant if he wanted to testify and the defendant
confirmed that he did not. The trial court then asked the prosecutor
about potential prejudice, and the prosecutor told the court that its
rebuttal witnesses had been released but that they could be relocated.
The trial court declined to reopen the evidence, concluding that the
defendant had been fully advised of his rights and had made an informed,
knowing, and voluntary waiver.

In a majority decision authored by Judge Fine, the court of appeals
affirmed. Among the issues on appeal was the defendant's claim that his
constitutional rights were violated when the trial court declined to
reopen the evidence to allow him to testify. The appellate court began
its analysis with the principle that a defendant's right to testify is a
fundamental constitutional right. The accused may, however, waive that
right. The defendant argued that his waiver was not valid because it was
conditional and that the trial court should have conducted another
colloquy with him after the two defense witnesses testified to determine
whether he still wanted to refrain from testifying. The appellate court
disagreed.

The right to testify must be exercised at the evidence-taking stage
of the trial and, once the evidence has been closed, whether to reopen
for submission of additional testimony is a matter left to the trial
court's discretion. A trial court must consider "whether the likely
value of the defendant's testimony outweighs the potential for
disruption or prejudice in the proceedings and, if so, whether the
defendant has a reasonable excuse for failing to present the testimony
during his case-in-chief." United States v. Peterson, 233 F.3d
101, 106 (1st Cir. 2000).

In this case, the judge considered the potential for prejudice. The
defendant made his request after the court told the jury that the
evidence-taking stage of the trial was complete and after the state
dismissed its rebuttal witnesses. The judge determined that substantial
prejudice would exist to the state and the system and the sequestered
jury in order to reopen the case. Moreover, the trial court found that
the defendant was engaging in "theatrics and ... playing for the
cameras, perhaps, and that this is a gross attempt to manipulate the
system."

Said the appellate court, "under the circumstances, we see no
infringement of [the defendant's] constitutional right to testify.
Further, it is clear from the context of the trial court's statements
that the trial court did not mean that [the defendant's] decision to
waive his right to testify was irrevocable as a matter of law. Rather,
it determined that it should not re-open based on what it believed was
[the defendant's] 'attempt to manipulate the system.' The trial court
did not erroneously exercise its discretion in not re-opening the
evidence" (¶ 21).

Insurance

The plaintiff, a minor, was injured by a negligent motorist, whose
insurer paid the policy's limits of $25,000. The plaintiff's insurer,
West Bend, in turn paid the plaintiff just $25,000 of the $50,000 in
underinsured motorist (UIM) coverage based on the policy's reducing
clause. The plaintiff sought an action declaring unenforceable the
reducing clause in the policy's UIM section.

The court of appeals, in a decision written by Judge Brown, affirmed
the circuit court because the policy was "contextually ambiguous" and
the reducing clause was therefore unenforceable. For those keeping
score, this opinion is Dowhower III - the third appellate
opinion rendered in this litigation. In Dowhower II the court
had applied the methodology set forth in Badger Mutual Insurance Co.
v. Schmitz, 2002 WI 98, and concluded that the reducing clause was
ambiguous "within the context of the whole policy." Dowhower v.
Marquez, 2003 WI App 23, ¶ 1. The Wisconsin Supreme Court,
however, vacated the decision and remanded the matter for
reconsideration in light of Folkman v. Quamme, 2003 WI 116,
which held that that "'crystal clear' language in Schmitz had
produced the unintended effect of altering the analytical focus in cases
involving alleged contextual ambiguity" (¶ 2). Folkman
"clarified" Schmitz and set forth an "analytical framework" for
lower courts to use in assessing contextual ambiguity. Applying the
Folkman framework, the court held that "[t]he policy's
inadequate and misleading organization, labeling and explanations make
it nearly impossible for a reasonable insured to locate, let alone
comprehend the extent of, his or her UIM coverage. We are convinced that
even after carefully working his or her way through the policy, a
reasonable insured might not arrive at the conclusion that he or she has
purchased a fixed level of UIM recovery that would be determined by
combining payments made from all sources" (¶ 29).

Reducing Clause - UIM

Alan Vorbeck was fatally injured in a car accident. The tortfeasor's
insurer paid policy limits of $250,000. Vorbeck had underinsured
motorist (UIM) coverage of $500,000 with Commercial Union, which applied
the policy's reducing clause and paid only $250,000. Commercial Union
then filed this action seeking a declaration that its obligation was
fully satisfied by the payment of just $250,000. The trial court found
the policy "cumbersome" but upheld the reducing clause.

The court of appeals, in a decision written by Judge Nettesheim,
affirmed. As in Dowhower III (see digest above), the court
applied the methodology recently announced in Folkman v.
Quamme, 2003 WI 116. In essence, Folkman is concerned with
the issue of contextual ambiguity ("a clear phrase within a policy can
be rendered ambiguous by contradictory language elsewhere in the
policy") (¶ 11). Addressing an "important preliminary manner," the
court of appeals clarified that contextual ambiguity is not allayed by
policy directives warning the insured to read the policy carefully: "If
a policy is contextually ambiguous thereby producing a reasonable
alternative meaning, no amount of directives to read the policy will
alleviate that situation" (¶ 23).

Turning to the policy's organization, especially with respect to the
reducing clause, the court found "nothing in the location, labeling or
language of these provisions that produces any contextual ambiguity."
The provisions were not "inconsistent" and did not "set up roadblocks or
diversions that would befuddle a reasonable insured while navigating
through the policy" (¶ 30). The only "arguable failing" was that
the policy's "Quick Reference" index did not refer to the Wisconsin
Endorsement, which contains the reducing clause (¶ 31). Nor was the
policy language itself ambiguous as scrutinized under Folkman.
"First, when considering alleged contextual ambiguity, we must look to
the contract as a whole. Second, we sometimes must look beyond a single
clause or sentence to capture the essence of an insurance agreement.
Third, the language of a policy should not be made ambiguous by
isolating a small part from the text of the whole. Finally, '[f]erreting
through a policy to dig up ambiguity should not be judicially rewarded
because this sort of ambiguity is insufficient'" (¶ 38) (citations
omitted). Read as a whole and in conjunction with the policy's other
provisions, the Wisconsin Endorsement was not ambiguous.

Judge Brown concurred, writing separately to emphasize the problem of
prolix insurance policies: "It is my view that although policy language
is now written in a simple, concise, short and uncomplicated way, too
much industry jargon is used without much, if any, attempt to define the
jargon for the consumer. Moreover, the policies quite often could be
presented in much more meaningful sequences" (¶ 47).

Nonowned Vehicle Exclusion - "Separation of Protected Persons"

Gulmire was injured by a vehicle driven by another employee while
both were working. State Farm insured the employee/tortfeasor and St.
Paul insured the employer, an auto auctioneer, under a commercial
automobile liability policy. Gulmire appealed judgments in favor of both
St. Paul and State Farm.

The court of appeals, in a decision written by Judge Cane, affirmed
as to State Farm but reversed as to St. Paul. The State Farm policy
excluded coverage for "nonowned vehicles." Such exclusions, said the
court, are not prohibited by Wis. Stat. section 632.32(6)(b)2a, which
precludes only coverage exclusions "for certain individuals relating to
the insured vehicle" (¶ 14). Next addressing public policy, the
court held that the parties' "freedom of contract" was not outweighed by
the "general public policy" to compensate victims (¶ 17).

The St. Paul policy provided liability coverage to various protected
persons. It was undisputed that the tortfeasor was driving a covered
automobile owned by one of the named insureds (a wholesaler). The
policy's "separation of protected persons" provision operated to make
the tortfeasor a "separate and distinct insured under his own policy,"
which in turn eliminated various exclusions. Specifically, the court
considered the fellow employee exclusion, the employer's liability
exclusion, and the worker's compensation exclusion. Finally, the
conclusion did not produce an "absurd result."

Fidelity Bonds - Losses "Resulting Directly"

A bank sued Federal Insurance Co. (Federal) for reimbursement under a
fidelity bond issued by Federal to the bank for monies paid to two
mortgage companies in the form of settlements as the result of
fraudulent acts of two former bank employees. The fraudulent scheme
involved fictive downpayments and false bank statements that defrauded
the two mortgage companies, with whom the bank settled. The circuit
court found that the standard fidelity bond at issue here limited losses
to those "resulting directly" from an employee's fraudulent acts, and
the losses here did not fall within that coverage.

The court of appeals, in a decision authored by Judge Curley,
affirmed. "A fidelity bond differs from a liability policy of insurance
because of the risk being insured. ... A fidelity bond is an indemnity
contract that 'guarantee[s] reimbursement for losses sustained by the
insured resulting from the dishonesty of the insured's employees'"
(¶ 13). The court rejected the bank's contention that the policy
was ambiguous and should be construed in its favor.

"First, the bond clearly restricts indemnification to those losses
that occur as a direct result of an employee's dishonest acts. This
language is not susceptible to more than one meaning. Here, the loss was
not direct. It was only after the mortgage defaults occurred, some three
years after the employees' deceitful actions, that [the bank's]
liability to the mortgage companies came into being. The losses did not
'result[] directly from dishonest or fraudulent acts committed by
employe[es,]' as the losses did not exist until the unsuitable mortgage
holders defaulted on their loans and the mortgage companies sued [the
bank]." Nor would a "reasonable banker" expect coverage for these
losses, in light of the "history of fidelity bonds" (¶ 19).
Moreover, the "majority of cases" on point have concluded that the
phrase is not ambiguous and that the bond's language should be
interpreted narrowly (¶ 23). Finally, the "better public policy"
supported this reasoning as well. (Several other claims of error were
also briefly addressed.)

Property

A bank foreclosed on an apartment building that had become a public
nuisance. At the sheriff's sale several years later, Resnant, which
owned an adjacent property, was the successful bidder at $273,000, which
would have left the bank with a deficiency of nearly $400,000. With the
aid of several adjournments, the bank negotiated a "plan of redemption,"
which did not provide for immediate full payment, but instead permitted
payment within six months. The circuit court granted the bank's motion
to set aside the sheriff's sale to Resnant.

The court of appeals, in an opinion written by Judge Schudson,
reversed. "Here, Wis. Stat. § 846.13 provides 'a clear and valid
legislative command' removing a circuit court's discretion to alter the
clear and unambiguous prerequisite of full payment for redemption before
the sale" (¶ 12) (citation omitted). Since the bank's buyer lacked
the "full payment," the court had no choice but to permit the sale to
the highest bidder, Resnant.

Torts

The court of appeals, in a decision written by Judge Brown, affirmed
a judgment awarding damages to an egg farm for losses sustained when a
ventilation system failed in one of the barns. The appellants first
argued that the economic loss doctrine precluded the farm's tort claims.
Initially, the court determined that the "transaction" involved the
failure to provide a "service" - namely, "the installation of the
ventilation system" - and not a defective product (¶ 20). Although
the supreme court has yet to address whether the economic loss doctrine
covers claims for negligent provision of services, the court of appeals
held that the doctrine did not preclude the farm's claim. To hold
otherwise, based on extant authority (including cases involving services
rendered by accountants and architects), would be an expansion of the
economic loss doctrine and beyond the authority of the court of appeals
(¶ 23).

Second, the court rejected the appellants' claim that the doctrine of
spoliation precluded the farm's claim. When problems arose with the
ventilation, the farm had the building rewired, which resulted in a
"loss of evidence" that was nonetheless fully justified by the need to
operate the business. The farm could not have "foreseen that litigation
concerning the loss was a distinct possibility, let alone that the
evidence would be relevant to such litigation" (¶ 17).